Extremist right-wing U.S. District Judge Matthew Kacsmaryk’s April 7 ruling sought to ban the abortion drug mifepristone, 23 years after it was approved by the U.S. Food and Drug Administration. The Texas judge, a Trump appointee, wrote that the FDA “exceeded its authority” in approving mifepristone, that today is used in more than half of all U.S. abortions. Hours later, a conflicting ruling from a Washington state federal judge ordered U.S. authorities not to restrict access to the abortion drug in 17 Democratic-led states that sued over the issue.
Later, the Fifth Circuit Court of Appeals granted the U.S. Department of Justice’s emergency request to put Judge Kacsmaryk’s ruling on hold, but the three-judge panel determined that other parts of Kacsmaryk’s ruling — which suspends changes the FDA later made to mifepristone’s approved use — halts distribution of the drug by mail, could still go into effect on April 15.
The U.S. Supreme Court then granted a request from the Justice Department for an administrative stay, which preserves the status quo until the end of the day April 19 as the high court considers its request to intervene in the court battle. Between The Lines’ Scott Harris spoke with Pema Levy, a reporter with Mother Jones magazine who examines Judge Kacsmaryk’s ruling, determining it was based on his anti-abortion ideology, rather than science, in the most significant case involving abortion rights since the Supreme Court overturned the 1973 landmark Roe v. Wade decision last June.
PEMA LEVY: The judge uses “research” and you can’t see me, but I’m using scare quotes here. “Research,” not real research, not scientific research done by anti-abortion groups to claim that medication abortion is deeply, physically and psychologically damaging and that women and pregnant people who take these abortion drugs are just changed, like the vast majority of them are “changed and they can’t sue for themselves. They’re just shells of their former self.” And this is just not true.
The American Psychological Association, which is the largest group of psychologists in the country, says the opposite. They survey all of the literature from this country and around the world and they say that what actually causes harm to women and to pregnant people is not having access to abortion, not having the ability to get an abortion if they want to.
One of the studies that he cites to sort of back up this fake characterization of what medication abortion does is it claims that 83 percent of women report that chemical abortion changed them and 70 percent of those women report a negative change. And when you look at what this study is, it is a study of anonymous comments on a website and the website is for people who have “reproductive grief.”
I can’t think of a less scientific study. It’s like if you had a website about people who love puppies and then you did a survey of anonymous comments and you said 100 percent of people love puppies. But no, it’s just the people that want to post on this. That’s what they’re going to this website for. So it’s hard to even stress how bonkers it is that, you know, a federal judge is citing this as actual scientific data when it’s just anonymous comments on a blog.
I feel like everyone knows that anonymous comments on a blog are not science.
SCOTT HARRIS: Yeah, it’s like these online polls, which are just bogus and dubious.
PEMA LEVY: Yes, I mean, honestly, like the fact that that’s what they have. It really just underscores the fact that this is not a ruling based in any sort of science. And that kind of underscores the whole point of our administrative system where we have the FDA, the agency that is up to the task of determining the science. They have scientists working with them. They have experts. They’re going to review all the studies. They’re going to do their homework and they’re going to make a scientific determination. And it makes sense that that is the body that approves drugs, not an ideologically anti-abortion federal judge comes in and cites comments on a blog. That’s that’s not how we should be making policy and approving drugs.
SCOTT HARRIS: Well, Pema, it’s pretty clear that the U.S. Supreme Court and its extremist right-wing supermajority will likely get to hear this case and make a decision on it. I don’t know enough about the legal cases or the legal precedents here to make any real assessment of how this extremist court may judge on this. But do you have any guesses, any predictions about what how the court might move on this extremely upending decision by this Texas judge?
PEMA LEVY: I’m really torn about this. I think that there are certainly 6 votes on this court; it’s a 6-3 conservative majority. I think there are 6 justices on this court that would like to ban mifepristone and certainly 5 who I think really want to do it right away.
On the other hand, this is a shockingly bad ruling. It shockingly flouts the law. It flouts outstanding doctrine, as we’ve discussed. It is a really big deal to the pharmaceutical industry. And the court doesn’t really like to go against big industries like that. This is a very pro-business court in a lot of ways as well. So I think that this will probably be conflicting to some justices who think “I hate abortion, but I don’t want to undermine, you know, big corporations.”
I do think one thing that the court would do to basically reassure the pharmaceutical industry—while also achieving their goal of making it very difficult to obtain an abortion in this country—is to basically carve out abortion drugs as this different cohort and basically say, “Normally, you wouldn’t have standing normally, you can’t overrule the FDA. But when it comes to abortion, when it comes to our, religious beliefs, all of this stuff can have this sort of like carve out where judges can have a say.”
It’s certainly not ideologically consistent nor one that makes any sense. It’s certainly a loophole that you could drive a truck through because there are a lot of people who also have religious objections to HIV prevention drugs, for example.
So I’m not saying that that would actually “cabin” the chaos here, but I could see a world in which the Supreme Court finds a way to uphold at least a lot of this ruling while also trying to reassure the pharmaceutical industry that they can invest in drugs and vaccines and not have them taken off the market whenever a federal judge feels like it. But we shall see.
Read Pema Levy’s Mother Jones article, “The Shocking Lack of Science in the Ruling Banning a Common, Safe Abortion Drug.”
Listen to Scott Harris’ in-depth interview with Pema Levy (28:35) and see more articles and opinion pieces in the Related Links section of this page.
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